The criminal law of a society may thus, on the whole, be taken for a faithful exponent of moral sentiments prevalent in that society at large. The attempt to make law independent of morality, and to allot to it a kingdom of its own, is really, I think, only an excuse for the moral shortcomings which it reveals if scrutinised from the standpoint of a higher morality. Law does not show us the moral consciousness in its refinement. But refinement is a rare thing, and criminal law is in the main on a level with the unreflecting morality of the vulgar mind. Philosophers and theorisers on law would do better service to humanity if they tried to persuade people not only that their moral ideas require improvement, but that their laws, so far as possible, ought to come up to the improved standard, than they do by wasting their ingenuity in sophisms about the sovereignty of Law and its independence of the realm of Justice.
CHAPTER VIII
THE GENERAL NATURE OF THE SUBJECTS OF ENLIGHTENED MORAL JUDGMENTS
THE subjects of moral judgments call for a very comprehensive investigation, which will occupy the main part of this work. As already said, we shall first discuss the general nature, and afterwards the particular branches, of those phenomena which have a tendency to evoke moral condemnation or moral praise; and in each case our investigation will be both historical and explanatory. The present chapter, however, will be neither the one nor the other. It seems desirable to examine the general nature of the subjects of moral valuation from the standpoint of the enlightened moral consciousness before dealing with the influence which their various elements have come to exercise upon moral judgments in the course of evolution. By doing this, we shall be able, from the outset, to distinguish between elements which are hardly discernible, or separable, at the lower stages of mental development, as also to fix the terminology which will be used in the future discussion.
Moral judgments are commonly said to be passed upon conduct and character. This is a convenient mode of expression, but the terms need an explanation.
Conduct has been defined sometimes as “acts adjusted to ends,”[1] sometimes as acts that are not only adjusted to ends, but definitely willed.[2] The latter definition is too narrow for our present purpose, because, as will be seen, it excludes from the province of conduct many phenomena with reference to which moral judgments are passed. The same may be said of the former definition also, which, moreover, is unnecessarily wide, including as it does an immense number of phenomena with which moral judgments are never concerned. Though no definition of conduct could be restricted to such phenomena as actually evoke moral emotions, the term “conduct” seems, nevertheless, to suggest at least the possibility of moral valuation, and is therefore hardly applicable to such “acts adjusted to ends” as are performed by obviously irresponsible beings. It may be well first to fix the meaning of the word “act.”
[1] Spencer, Principles of Ethics, i. 5.
[2] E.g., Mackenzie, Manual of Ethics, p. 85.
According to Bentham, acts may be distinguished as external, or acts of the body, and internal, or acts of the mind. “Thus, to strike is an external or exterior act: to intend to strike, an internal or interior one.”[3] But this application of the word is neither popular nor convenient. The term “act” suggests something besides intention, whilst, at the same time, it suggests something besides muscular contractions. To intend to strike is no act, nor are the movements involved in an epileptic fit acts.
[3] Bentham, Principles of Morals and Legislation, p. 73.